Wiltshire shaken by sale of unauthorised plant variety

The poppy, without tear drop ...

11 November is Remembrance Day in the United Kingdom and in numerous other jurisdictions.  It is not a day for marking military victories or for mourning defeats, but a day for the living to pay their respects to those who died in the service of their countries and, where appropriate, to recall with affection and sorrow the loss of family and friends.

While Remembrance Day is not an opportunity for rampant commercialisation, it too has a commercial dimension.  This takes the form of the solicitation by a registered charity, the Royal British Legion (RBL), of charitable donations in exchange for a remembrance poppy (right). The funds collected by the RBL are put to a variety of good causes for the benefit of ex-servicemen and women. These include counselling, rehabilitation facilities, the adaptation of domestic accommodation to meet the needs of the disabled and other forms of support. This Kat has bought a poppy this year, as he does every year, offering his thanks to those who have fallen on his behalf and his condolences to those who have been bereaved or have suffered loss.

This year's lead-in to Remembrance Day has however seen an unseemly intellectual property dispute. As the BBC explains:

"A Wiltshire charity worker who has made thousands of crystal teardrops for remembrance poppies has been told by the Royal British Legion (RBL) that it is an "unlicensed use" of the poppy. Lynda Beaven, of Steeple Ashton, has created 4,000 tears to raise funds for the RBL and other service charities. The project was launched in June to honour those connected with repatriations in Wootton Bassett. But an RBL spokesman said its trade mark rights had been "violated". 

... and with it

According to Mrs Beaven, the Wootton Bassett Teardrops project has sold over 1,500 teardrops at £3 each. However, on 27 October - on the Poppy Appeal launch day - she said she was told by the RBL that "technically you're not allowed to attach anything to a poppy". 

"I was taken aback by that because the Royal British Legion head office have been fully aware of my project since February," she said. "I even have an email from the publications officer at the RBL giving me permission to use a digital photo of my lapel poppy for fundraising."

But the RBL's national spokesman, Robert Lee, said the email Mrs Beaven had received "wasn't a licensing agreement" and using the poppy to raise funds for other charities was "in clear violation of our trade mark rights.  The red poppy is our registered mark and its only lawful use is to raise funds for the Poppy Appeal. She has made a not inconsiderable sum of money by selling our poppy and donating proceeds to other charities. This person was told the licensing conditions but chose to ignore them." 

According to Mrs Beaven, the RBL has yet to speak to her directly, although she said she had stopped selling the teardrops. "From the public we have received nothing but positive comments.
And on Saturday I received a letter from Camilla, Duchess of Cornwall thanking me for sending the Wootton Bassett teardrops and saying she shall wear them with pride." A Clarence House spokeswoman said the duchess would not comment on any private and confidential correspondence.".

The IPKat notes that the RBL has quite a trade mark portfolio. Of particular interest is UK registration 2239583, represented on the right, for goods and services in Classes 08, 09, 14, 16, 21, 24, 25, 26, 31, 35, 36, 39, 41 and 42. These include artificial flowers in class 26. Leaving aside for the moment the fact that this is a representation of an artificial flower which gives a monopoly in respect of the sale of artificial flowers, the IPKat is pondering on a number of other issues.

• First, assuming that the poppies to which Mrs Beaven has attached the tears are genuine RBL poppies, there's in interesting exhaustion of rights issue: is the resale or at least the redistribution of RBL poppies with the tear attached actually prohibited at all?
  
• Secondly, it seems quite difficult to separate the RBL poppy from the RBL trade mark since the goods in question do rather seem to be a trade mark for themselves.
  
• Thirdly, if there is trade mark infringement, on what basis would RBL be able to recover damages and how would they be assessed, assuming that an appropriate donation has already been made in respect of the teardrop-enhanced variety?

Merpel is a little dazed by all of this. She's still trying to work out why the RBL's class 08 registration is for "spoons and cutlery". Having watched humans at feeding time on a number of occasions, she'd always assumed that spoons were cutlery, but is happy to be corrected on this point.

Thanks are due to Robin Fry (DAC Beachcroft LLP) for supplying the link, and for entertaining the IPKat with some delightful reflections on the application on these facts of the third head of the Rules against Perpetuities and Accumulations, of which this Kat knew (and still knows) nothing and which struck him as being about as relevant as the third law of thermodynamics.

Things to do with poppies here and here
Things not to do with poppies here and here